Mbatha Kange’the v Republic [2015] KECA 781 (KLR)

The court held as a matter of law that the alternative count exists only as a fallback. Once the main count results in conviction, the court's jurisdiction to convict on the alternative count is spent, even where it properly finds the alternative charge proved. The conviction and two-year sentence on the alternative count were therefore quashed and set aside, without affecting the conviction on the main count, which was the true subject of the appeal.

The court explained that once the trial court's findings of fact, made with the advantage of seeing and hearing witnesses, are confirmed by a first appellate court that has re-evaluated the evidence and reached its own independent conclusion, the second appellate court will not upset those concurrent findings unless they are shown not to be based on evidence. The court found the learned Judge had subjected the entire evidence to a fresh and thorough evaluation.

The trial magistrate conducted a voir dire examination of PW2 and found she understood the nature of an oath, then ordered the witness to give a sworn statement, after which the record shows the witness proceeded. That record itself established the evidence was sworn. In any event, PW3's evidence and the medical evidence together with PW2's testimony formed an iron-clad case that the appellant was the defiler.

The trial magistrate had reserved judgment for 5th July 2011, and the appellant's petition of appeal to the High Court itself described the conviction and sentence as passed on 5th July 2011; his grounds of appeal before the High Court did not complain of an undated judgment. The court further noted that had the defect existed it would have been a curable irregularity under Section 382.